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Subtitle A — Coordination with Non-Federal Entities

Section 701. Responsibilities.

This section specifies responsibilities of the Secretary of Homeland Security relating to coordination with state and local officials and the private sector in carrying out the mission of the Department of Homeland Security. These include coordinating with state and local governments and the private sector to ensure adequate planning, equipment, training, and exercise activities; coordinating and, as appropriate, consolidating, the federal government’s communications and communications systems relating to homeland security with state and local governments, the private sector, other entities, and the public; directing and supervising federal grant programs for state and local government emergency response providers; and distributing, or, as appropriate, coordinating the distribution of, warnings and information to state and local governments and to the public.

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Subtitle B — Inspector General

Section 710. Authority of the Secretary.

This section, modeled on sections 8 and 8e of the Inspector General Act, places the Secretary of Homeland Security on essentially the same footing, with respect to the Department of Homeland Security, as the Secretary of Defense and the Attorney General, with respect to their own Departments. Under those two sections, the Secretary of Defense and the Attorney have limited authority to circumscribe the activities of their departmental Inspectors General upon notice to Congress. Consistent with those two sections, this section expressly requires the Secretary of Homeland Defense to notify the Congress within thirty days of any exercise of the limiting authority. This section reflects a carefully drawn balance between the need to respect the unusual and sensitive nature of the substantive work of the Departments and the overall purposes of the Inspector General Act.

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Subtitle C — United States Secret Service

Section 720. Functions transferred.

This section provides for the transfer of the United States Secret Service to the Department of Homeland Security. The section expressly requires that the Secret Service be maintained as a distinct entity within the Department.

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Subtitle D — General Provisions

Section 730. Establishment of Human Resources Management System.

This section creates a new part of title 5, United States Code, to allow the Secretary, jointly with the Director of the Office of Personnel Management, to issue regulations to create and adjust a human resources management system for the Department. Because the Department’s mission includes contributing to the security of the nation and responding to evolving threats and conditions, the provision calls for the Secretary and the Director of the Office of Personnel Management to create a modern, flexible, and responsive program.

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Section 731. Advisory Committees.

This section provides that the Secretary of Homeland Security may establish, appoint the members of, and use the services of advisory committees. The section further provides that the Federal Advisory Committee Act, Pub. L. No. 92-463, is to be inapplicable to any advisory committee so established or used; but the Secretary is required to publish notice in the Federal Register announcing the establishment of an advisory committee and its membership and purpose. Both the Central Intelligence Agency and the Federal Reserve System are now exempted by statute from the Federal Advisory Committee Act. See 5 U.S.C. app. 2 § 4(b). In view of the need for the Department of Homeland Security to establish or to use the services of advisory committees on highly confidential and sensitive homeland security matters, it is desirable to provide the Department with an exemption comparable to those already in existence for the Central Intelligence Agency and the Federal Reserve System.

Section 731 also provides that the services of an individual as a member of an advisory committee established under the section does not bring that member within any of three provisions of title 18 of the United States Code: section 203 (relating, in part, to the compensation of special government employees for outside representational services); section 205 (relating, in part, to the activities of special government employees in bringing claims against the government); and section 207 (relating, in part, to post-employment restrictions on special government employees). These exceptions are needed to enable the Department of Homeland Security to secure the services of individuals on its advisory committees who are highly qualified to serve and are otherwise willing to do so, but who might be reluctant to accept such appointments if it might expose them to the risk of a criminal prosecution for their outside work or activities. Section 731 nonetheless provides that such individuals shall remain subject to the criminal prohibitions of sections 203, 205 and 207 of title 18 with respect to any particular matter that directly involves the Department or in which the Department is directly interested.

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Section 732. Acquisitions; property.

This section contains authorities of the Secretary of Homeland Security relating to acquisitions and property.

Subsection (a) authorizes the Department of Homeland Security to engage in transactions other than contracts, grants, and cooperative agreements (so-called "other transactions"), for research and development and prototype efforts. With the intent of attracting non-traditional contractors who offer innovative and cutting-edge technology, such other transactions are exempt from procurement laws. The Defense Advance Research Projects Agency currently uses this authority for significant research and development projects.

Subsection (b) authorizes the Department of Homeland Security to contract for private sector services, including consultants and experts, using a form of contracting that allows for the creation of an employer-employee relationship. Normally, agencies are required to obtain these services by direct hire under competitive appointment or other procedures under civil service laws. While contracts that create employer-employee relationships are generally prohibited, the nature of the Department’s work may necessitate this additional flexibility in securing services.

Subsection (c) authorizes the Department of Homeland Security to invoke 40 U.S.C. 474 to avoid the application of any procurement statute or regulation that would impair the accomplishment of the Department’s mission. Normal procurement operations would be subject to current government-wide procurement statutes and regulations. This exemption, however, would provide authority for necessary purchases or disposal that otherwise might not be allowed under current law. This same statutory authority exists for the Central Intelligence Agency and the Atomic Energy Commission (now vested in the Energy Research and Development Administration).

Subsection (d) gives the Secretary of Homeland Security authority to acquire and dispose of property, specifically as follows: (1) acquiring replacement real property by exchange or transfer in participation with another agency under mutually agreeable terms or by selling or exchanging real property assets to or with any non-federal source; (2) making unexpired portions of leases of real property available for interim uses, through leases, licenses, permits, or similar instruments issued to another federal agency or a non-federal entity; and (3) making underutilized portions of government-owned real property available through outlease agreements with a federal agency or a non-federal entity. The subsection also authorizes the Secretary of Homeland Security to deposit the proceeds from these transactions in any account in the Treasury available for purposes of the Department of Homeland Security.

Subsection (e) requires that the Administrator of the General Services Administration delegate, upon the written request of the Secretary of Homeland Security, disposal authorities for surplus real and related personal property.

Subsection (f) allows the Secretary of Homeland Security to retain the bulk of the net proceeds from surplus personal property transactions.

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Section 733. Reorganization; transfer.

Subject to specific limitations, this section gives the Secretary of Homeland Security authority to reorganize the Department of Homeland Security by allocating or reallocating functions within the Department and by establishing, consolidating, altering or discontinuing organizational units within the Department. It also gives the Secretary limited authority (up to five percent) to transfer funding between appropriations accounts upon fifteen days notice to the House and Senate Appropriations Committees.

These authorities are critical to the successful establishment and organization of a new department. They allow the Secretary to fulfill the purpose of the bill by bringing together the many different functions and organizational units that will be consolidated in the new department and having them work together in new ways, and with new priorities. Similar reorganization authority was granted in the acts creating the Department of Energy and the Department of Education. Appropriations transfer provisions are enacted annually in a number of appropriations acts.

The Secretary’s authority to reorganize would not extend to the abolition of an entity that the bill establishes or requires to be maintained as a distinct entity, including the United States Secret Service and the Coast Guard.

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Section 734. Miscellaneous provisions.

This section, which adapts or makes applicable by cross-reference existing provisions of law, provides miscellaneous authorities to the Department of Homeland Security. These miscellaneous authorities relate largely to housekeeping matters such as the design and institution of an official Departmental seal, property given to the Department, certain authorities of the Secretary of Transportation with respect to the Coast Guard and other federal personnel, and general delegation and redelegation authority within the Department.

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Section 735. Authorization of appropriations.

This section authorizes the appropriation of such sums as may be necessary to carry out the purposes of the bill.

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